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Jonathan Peters* the First Amendment As a Subject Is THE MODERN FIGHT FOR MEDIA FREEDOM IN THE UNITED STATES Jonathan Peters* I. INTRODUCTION The First Amendment as a subject is challenging and provocative, and scholarly and popular understandings of it are changing.1 New communication technologies are pushing lawyers, judges, and scholars to revisit, and sometimes rethink, old legal doctrines and concepts.2 In the area of privacy, we have * Jonathan Peters is a media law professor at the University of Georgia, with appointments in the School of Law and the Grady College of Journalism and Mass Communication. He is the press freedom correspondent for the Columbia Journalism Review, and he has written about First Amendment issues for Esquire, The Atlantic, Slate, Wired, and CNN. He has also blogged about free speech for the Harvard Law Review, and his scholarship has appeared in the Harvard Law and Policy Review and the Berkeley Technology Law Journal, among others. He is coauthor of the textbook The Law of Public Communication, now in its 10th edition. Peters is grateful for the research assistance of UGA law students Charles Wells, William Gaskins, Victoria Carballo, and Mary Frances Dennis. He is also grateful that the UNC Center for Media Law and Policy hosted him for a talk in January 2019 that prompted him to think thematically about many of the issues discussed in this article and in his remarks at this symposium. Speaking of which: He thanks the staff of the First Amendment Law Review for planning such an engaging and thought-provoking event about the First Amendment’s role in facilitating an informed society. 1 See, e.g., Mary Anne Franks, The Free Speech Black Hole: Can the Internet Escape the Gravitational Pull of the First Amendment?, KNIGHT FIRST AMEND. INST. AT COLUM. U. (Aug. 21, 2019), https://knightcolumbia.org/content/the-free-speech-black-hole- can-the-internet-escape-the-gravitational-pull-of-the-first-amendment; Kate Klonick, Facebook v. Sullivan, KNIGHT FIRST AMEND. INST. AT COLUM. U. (Oct. 1, 2018), https://knightcolumbia.org/content/facebook-v-sullivan; Frederick Schauer, The Hostile Audience Revisited, KNIGHT FIRST AMEND. INST AT COLUM. U. (Nov. 2, 2017), https://knightcolumbia.org/content/hostile-audience-revisited; Jeremy Waldron, A Raucous First Amendment, Wild, Boisterous, and Raucous Free Speech, KNIGHT FIRST AMEND. INST. AT COLUM. U. (Aug. 21, 2019), https://knightcolumbia.org/content/a-raucous-first-amendment-1; Tim Wu, Beyond First Amendment Lochnerism: A Political Process Approach, KNIGHT FIRST AMEND. INST. AT COLUM. U. (Aug. 21, 2019), https://knightcolumbia.org/content/beyond-first- amendment-lochnerism-a-political-process-approach; Tim Wu, Is the First Amendment Obsolete?, KNIGHT FIRST AMEND. INST. AT COLUM. U. (Sept. 1, 2017), https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete. 2 See, e.g, Davison v. Randall, 912 F.3d 666 (4th Cir. 2019); Knight First Amend. Inst. at Colum. U. v. Trump, 928 F.3d 226 (2d Cir. 2019). 2020] FIGHT FOR MEDIA FREEDOM 61 to think today about encryption3 and a website’s terms of service.4 In the area of copyright, we have to think about peer-to- peer file sharing5 and the licenses granted by iTunes.6 In the area 3 See, e.g., Joshua Benton, Here Are 12 Principles Journalists Should Follow to Make Sure They’re Protecting their Sources, NIEMANLAB (Jan. 16, 2019, 11:00 AM), https://www.niemanlab.org/2019/01/here-are-12-principles-journalists-should- follow-to-make-sure-theyre-protecting-their-sources/; Kate Krauss, Time for Journalists to Encrypt Everything, WIRED: OPINION (Mar. 10, 2017, 10:30 AM), https://www.wired.com/2017/03/time-journalists-encrypt-everything/; Spencer Woodman, Five Digital Security Tools to Protect Your Work and Sources, INT’L CONSORTIUM OF INVESTIGATIVE JOURNALISTS: BLOG (Jan. 29, 2018), https://www.icij.org/blog/2018/01/five-digital-security-tools-to-protect-your-work- and-sources/. 4 See, e.g., Ian MacDougall, Soon You May Not Even Have to Click on a Website Contract to be Bound by its Terms, PROPUBLICA (May 20, 2019), https://www.propublica.org/article/website-contract-bound-by-its-terms-may-not- even-have-to-click; New York Times Editorial Board, How Silicon Valley Puts the ‘Con’ in Consent, N.Y. TIMES: OPINION (Feb. 2, 2019), https://www.nytimes.com/2019/02/02/opinion/internet-facebook-google- consent.html; Charlie Warzel & Ash Ngu, Google’s 4,000-Word Privacy Policy is a Secret History of the Internet, N.Y. TIMES: THE PRIVACY PROJECT (July 10, 2019), https://www.nytimes.com/interactive/2019/07/10/opinion/google-privacy- policy.html. 5 See, e.g., Richard Conniff, Steal This Book? There’s a Price, N.Y. TIMES: OPINION (Sept. 15, 2019), https://www.nytimes.com/2019/09/15/opinion/book- piracy.html; Guillermo Contreras, Alleged ‘Copyright Troll’ Claims Unnamed San Antonians Are Stealing Porn Movies, SAN ANTONIO EXPRESS-NEWS (July 18, 2019, 3:44 PM), https://www.expressnews.com/news/local/article/Alleged-copyright-troll- claims-unnamed-San-14106219.php; Ben Gilbert, Facebook Now Blocks People from Sharing Links to Notorious Piracy Site The Pirate Bay, BUS. INSIDER (Sept. 30, 2019, 10:20 AM), https://www.businessinsider.com/facebook-blocks-users-from-linking- to-the-pirate-bay-2019-9. 6 See, e.g., Harmeet Kaur, Now That iTunes Is Going Away, Here's What Will Happen to Your Music and Movies, CNN: BUSINESS (June 6, 2019, 2:24 PM), https://www.cnn.com/2019/06/06/tech/apple-explains-itunes-changes- trnd/index.html; David Lazarus, Column: When You Buy Digital Content On Amazon Or iTunes, You Don’t Exactly Own It, L.A. TIMES (May 13, 2016, 3:00 AM), https://www.latimes.com/business/lazarus/la-fi-lazarus-digital-content-20160513- snap-story.html; Mike Masnick, You Don’t Own What You’ve Bought: Apple Disappears Purchased Movies, TECHDIRT (Sept. 12, 2018, 10:37 AM), https://www.techdirt.com/articles/20180912/09473640628/you-dont-own-what- youve-bought-apple-disappears-purchased-movies.shtml. 62 FIRST AMENDMENT LAW REVIEW [Vol. 18 of sexual expression, we have to think about sexting,7 revenge porn,8 and deep fakes.9 This is the emerging state of play for First Amendment law in our modern media landscape, in which PBS has a Pinterest board,10 the Associated Press once built a partnership with other news organizations to collect royalties from aggregators,11 and the “people formerly known as the audience,” as New York University’s Jay Rosen once put it,12 regularly perform journalistic acts using their own smartphones.13 This is 7 See, e.g., John A. Humbach, "Sexting” and the First Amendment, 37 HASTINGS CONST. L.Q. 433 (2010); Robert D. Richards & Clay Calvert, Prosecuting Obscenity Cases: An Interview With Mary Beth Buchanan, 9 FIRST AMEND. L. REV. 56 (2010); Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 32 HASTINGS COMM. & ENT. L.J. 1 (2009). 8 See, e.g., Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 WAKE FOREST L. REV. 345 (2014); Alix Iris Cohen, Nonconsensual Pornography and the First Amendment: A Case for a New Unprotected Category of Speech, 70 U. MIAMI L. REV. 300 (2015); Deanna Paul, Is Revenge Porn Protected by the Constitution? Some States Might Say Yes, WASH. POST (May 19, 2019, 11:07 AM), https://www.washingtonpost.com/nation/2019/05/19/is-revenge-porn-protected- by-constitution-some-states-might-say-yes/. 9 See, e.g., Jesselyn Cook, Here’s What It’s Like To See Yourself In A Deepfake Porn Video, HUFFINGTON POST (June 23, 2019, 7:00 AM), https://www.huffpost.com/entry/deepfake-porn-heres-what-its-like-to-see- yourself_n_5d0d0faee4b0a3941861fced; Tom Simonite, Most Deepfakes Are Porn and They’re Multiplying Fast, WIRED (Oct. 7, 2019, 10:00 AM), https://www.wired.com/story/most-deepfakes-porn-multiplying-fast/; James Vincent, New AI Deepfake App Creates Nude Images of Women in Seconds, THE VERGE (June 27, 2019, 6:23 AM), https://www.theverge.com/2019/6/27/18760896/deepfake-nude-ai-app-women- deepnude-non-consensual-pornography. 10 PBS, PINTEREST, https://www.pinterest.com/pbsofficial/ (last visited Oct. 17, 2019). 11 Rick Edmonds, AP, 28 News Orgs Launch Newsright to Collect Licensing Fees from Aggregators, POYNTER (Jan. 5, 2012), https://www.poynter.org/reporting- editing/2012/ap-28-news-orgs-launch-newsright-to-collect-licensing-fees-from- aggregators/. 12 Jay Rosen, The People Formerly Known as the Audience, PRESS THINK (June 27, 2006), http://archive.pressthink.org/2006/06/27/ppl_frmr.html. 13 See, e.g., David Uberti, Philando Castile, Facebook Live, and a New Chapter for Citizen Journalism, COLUM. JOURNALISM REV. (July 7, 2016), https://www.cjr.org/analysis/philando_castile_minnesota_facebook_live.php; Mike Isaac & Sydney Ember, Live Footage of Shootings Forces Facebook to Confront New Role, 2020] FIGHT FOR MEDIA FREEDOM 63 a media industry in which the gathering, production, and distribution of content is widely dispersed,14 and the ongoing challenge for First Amendment law is to keep up—to breathe life into the freedoms of speech and press, no matter the media of the day. Public-opinion research shows that most Americans support the freedoms of speech and press, but nearly one-third think they go too far,15 and roughly a quarter of Americans think “the president should have the authority to close news outlets engaged in bad behavior,” including 43 percent of Republicans.16 Courts have confronted these idiosyncrasies daily, for decades, in cases involving people who say things that are different, offensive, or unwelcome.17 That is because the real power of the N.Y. TIMES (July 8, 2016), https://www.nytimes.com/2016/07/09/technology/facebook-dallas-live-video- breaking-news.html?_r=0; Trevor Timm, People Who Film Police Violence Are Citizen Journalists.
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